Monsanto Verdict – Our verdict?

The verdict from the US trial centred on the potential cancer-causing properties of glyphosate is in – and the headlines seem to say it all: ‘Monsanto ordered to pay $289m as jury rules weedkiller caused man’s cancer’. But look a little deeper and it’s clear that the ramifications of this trial go much deeper.

First of all, let’s talk about the human side of this: a man is dying of cancer, his family is distraught and no amount of money can change that. I am genuinely sympathetic – I know what it’s like to have family members with cancer, and I wouldn’t make light of it or wish it on anyone. From my point of view, it’s clear that Mr Johnson deserves healthcare, and furthermore, I totally agree that he deserves restitution for any wrongs that have been done to him.

What I am going to argue below doesn’t change that.

But that is not what this article is about – this article is about scientific, technical and legal ramifications of this case on the industry that Japanese Knotweed Solutions works in.

Let’s also be clear: this is my opinion based on coverage of the trial – I don’t have the detailed judgement or the full transcript of the trial (or the time to research them), so I accept there are gaps in my understanding – feel free to comment below.

With that out of the way: the potential impacts of this verdict are significant in a number of ways, principally the futures of a huge global multinational and the world’s most widely used herbicide.

Potential Damages

Brent Wisner, counsel representing Mr Johnson said that the verdict sends “a message to Monsanto that its years of deception regarding Roundup [are] over and that they should put consumer safety first over profits”. If the verdict and the award of damages is upheld, it certainly will send a message.

Monsanto is facing anything up to another 4,000 similar cases across the US. Assuming that only one in eight make trial and that all settle for a lesser value (approx. 40%) compared to Mr Johnson, the value of the claims would be around $40bn, which is well over 45% of the total stock market value (market capitalisation) of the company Bayer.

Bayer wholly own Monsanto after a $66bn takeover last year, making the company one of the top ten largest pharmaceutical / biotechnology firms in the world.

To put the size of the potential liabilities in to context, Bayer has recently traded more than 30% down from its high point earlier in 2018, when it was valued at over $120bn. In 2017, Bayer reported profits of around $6bn on an income of around $35bn. At that rate, Bayer would have to pay out all of its annual profits for several years to settle these cases – or somehow “give away” forty percent of the total value of the company to settle complaints.

If all 4,000 cases were settled for the same value as the payout awarded to Mr Johnson, the total liability of Monsanto would run to something like $1,156,000,000,000. That’s $1.2 TRILLION – more than the market capitalisation of Apple, the world’s largest company, and greater than the GDP of countries like Mexico, Turkey and Indonesia.

When you look at the value of these settlements in those terms – up to $1tn for 4,000 people – versus the entire annual output of a country like Mexico of over 120 million people, the award seems disproportionate – even if we extrapolate over a lifetime of lost earnings, and consider the tragedy of dying young from a horrible disease.

While the verdict was delivered by a jury (not a panel of experts or policymakers), and while the judge is not under any responsibility to consider the wider ramifications of the award, if the award is upheld on appeal, it’s difficult to see how the company can survive; which would ironically probably mean that any people looking to make their own claims would receive greatly reduced (if any) payouts.

The Right Verdict?

This is where I am on less strong ground, not having been able to review the scientific evidence presented to the court. However, I have reviewed the publicly-available evidence in significant detail as both a qualified pesticides advisor and a health and safety professional.

From the point of view of someone with a significant understanding of the studies and evidence involved, who has spent years studying to understand the issues and methods that are addressed, I think it is fair to say that a jury of laymen is unlikely to be able to fully understand the scientific evidence that was presented at the case – which is critical to the verdict that was delivered.

What’s more, while I can’t make any judgement on the individual jurors, we can state confidently that there is widespread distrust of science in particular cases – particularly when it comes to food.

In a 2016 survey , only 17% of a sample of people in Germany stated that they trust the statements from scientists on GMOs – a figure that is particularly relevant given Monsanto’s involvement in this field. Campaigns against Monsanto are widespread on the internet, and may have fed in to a negative view of the company itself and the biotech industry at large. Whether these are acknowledged by jurors or not, such sentiments are mainstream, with films like Resident Evil, the Alien franchise, Jurassic Park, Black Sheep, Elysium, Bladerunner, Splice, and even The Suit, all revolving around the ills of biotech and/or the moral bankruptcy of global multinational companies.

If we expect such a significant bias against scientific evidence and a bias against scientists who are funded by companies with an interest in the research (as is the case with the majority of practical pesticides studies), then we can anticipate the possibility that the jury in this case may have been prejudiced (consciously or not) against the scientific evidence being presented by Monsanto’s defence. Whether any or all of this was tackled in the jury selection process, I can’t say, but I think it’s very much worth considering.

What we can say with certainty is that a jury can be swayed by a persuasive speaker – but we know that this is not how science works. The more persuasive person has no bearing on the validity of the science – and this is why studies are published and scrutinised reviewed by other scientists (peer review).

Unfortunately, we can see in wider society that a persuasive or well-framed argument, or one that employs scare tactics or other sensationalist devices can cause a rejection of science on a society-wide level – you need to look no further than global warming, the flat earth movement and the sad consequences of the “anti-vax” movement for clear evidence of how this plays out in the real world.

The Right Evidence?

However, the case did seem to point towards a validation of the widespread concern about funder-controlled science, with the hugely damaging allegations made during the trial that Monsanto have made deliberate efforts to distort scientific consensus over the safety of glyphosate and/or Roundup products by attempting to manipulate scientific studies and “bury” studies with unfavourable results (tactics previously employed by big tobacco).

This is particularly serious, because current guidelines in the US, EU and around the world are based on the review of scientific literature by expert panels. If the science has been tampered with at source, as has been alleged, then products have potentially been approved, used and sold to the public based on false pretences.

If the products aren’t safe, then countless farmers and government employees, as well as householders and landowners in the private sector have been using these products without proper advice, and in many cases without proper protective equipment.

Hardly a week goes by when I don’t see amenity contractors walking (or riding quad bikes) around wearing jeans, lace-up boots and an absorbent hi-vis vest over their t-shirt or jumper. The labels for glyphosate-based herbicide products recommend much more effective protective equipment (our teams wear nitrile gloves, wellingtons, spray suits and face- and eye protection at all times); however, the labels also state that the products are classified as non-hazardous (which for the purposes of UK legislation, they are).

If the science that earned that “non-hazardous” classification has been tampered with at source, then the authorities and experts responsible have potentially failed to prevent thousands or even millions of people around the world from exposure to a potentially harmful chemical – because of that tampering.

If that is the case, then this is even more concerning in light of increasing findings that glyphosate is in drinking water, kids cereals and increasingly found in people around the world who are not occupationally exposed to herbicides.

Under Pressure

The verdict, and the allegations of tampering with the science will surely to lead to renewed political pressure for the banning of glyphosate-based herbicides in the US and EU – a campaign which has already had some measured success against the current scientific consensus in the EU, although the product is still currently licensed at the time of writing.

From my point of view, this political pressure is not misplaced – just somewhat misdirected, and not balanced. The way I see it, herbicides shouldn’t be sold across the counter to people who don’t know about what they are, how they work and the environmental and health risks they carry; products should only be applied by trained, qualified professionals – and their employers should be held to account where the relevant controls are not in place.

If it can be demonstrated that the science has been influenced and that the current judgements are based on flawed evidence, then there needs to be a root and branch review of the safety aspects and approvals for glyphosate. I don’t necessarily think that a blanket ban on the herbicide is appropriate – but at the very least, it should require an in-depth study of the implications of using GM crops and using glyphosate-based herbicides around food.

However, there are still a lot of plants that need to be controlled which don’t pose a significant risk of becoming resistant, and which won’t cause herbicides to enter the food chain. Of course, I would consider invasive weeds to be among these, wouldn’t I? I work in the industry… But when you look at the environmental impacts of these plants, versus the potential impacts of using a herbicide which has the potential to cause cancer, then where we can adequately control the health risks (which 99% of the time, we can), I think it’s the safer bet. It’s certainly safer than some of the other herbicides that we don’t use, given the fact that they are more toxic both to humans and the environment.

For those who want to live a life without glyphosate, they will find their lives impacted in all sorts of ways, including (particularly for US consumers), their food, with 95% of sugar beets, 88% of corn and 94% of soybeans in the United States being grown as GM varieties.

“In 2014, approximately 18 million farmers in 28 countries planted GM crops in more than 181 million hectares, corresponding to 13% of the world’s arable surface. Globally, GM soybeans accounted for about 82% of the total soybean area, while GM cotton, maize and oilseed rape occupied 68%, 30% and 25% of the total crops area respectively.

“Approximately 70%–90% of GM crops are used as feeds for food-producing animals. Foods produced from these GM food-fed animals are not regulated or labelled as GM foods in most if not all countries. Therefore, consumers may unknowingly consume GM ingredients even if they actively avoid GM foods.”

A significant proportion of these crops are modified specifically (by Bayer and Monsanto) to be resistant to herbicides, particularly glyphosate – and a ban on glyphosate would have significant knock-on effects, particularly on the prices of meat, as well as the livelihoods and outputs of farmers in countries around the world. It may also lead to increased deforestation and habitat loss if reduced yields are no longer able to meet demand.

However, unexpected knock-on issues like smells, sights (or lack of them), as councils and highways managers cut back on weed management and a general degradation in the management of amenity spaces.

What will likely concern campaigners even more is that in the short term, they might find that glyphosate is replaced by other, more harmful herbicides.

While I don’t actually think there are many people out there using glyphosate to control roses, those celebrating this court case as a victory may find that the future is not quite as rosy as they thought.

Chris Oliver
Operations Manager at JKSL